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Wind farm lawsuit trial set for U.S. District Court on Dec. 14

Nation has asked for preliminary and permanent injunctions to prevent the facility construction from moving forward
Nation has asked for preliminary and permanent injunctions to prevent the facility construction from moving forward. Courtesy Photo

The legal debate over a proposed wind farm in western Osage County is scheduled for court starting Dec. 14 at the U.S. District Courthouse in Tulsa.

The Osage Nation is opposing a 94-turbine wind farm and has asked the federal court for preliminary and permanent injunctions to prevent the facility construction from moving forward.

The Osage Nation, through the Osage Minerals Council, filed suit against the Missouri-based Wind Capital Group on Oct. 18 to halt its plans for the 8,500-acre wind farm, which would be built near Burbank and U.S. Highway 60 west of Pawhuska. Wind Capital Group, which planned to start construction no later than December, is concerned the lawsuit will jeopardize the project’s funding and efforts to qualify for a federal tax credit.

Presiding U.S. District Court Judge Gregory Frizzell approved a motion recently, sought by the project builder Wind Capital Group, to consolidate the preliminary injunction hearing and a trial, accelerating the process so both would be heard at the same time.

The company filed the consolidation motion on Oct. 26, which was granted by Frizzell during Thanksgiving week. In his ruling, Frizzell wrote: “It . . . appears that the factual issues raised by the complaint are relatively few, straightforward, and identical with those which would be presented at a later trial.”

The Nation objected to Wind Capital Group’s consolidation motion and argued there is not enough “discovery” time to research and build its case against the company if the motion was granted. Frizzell noted that discovery time for both sides began on Oct. 31 and lasts until Dec. 9 or can be extended through Dec. 14 upon agreement.

“Plaintiff has not persuaded this court that the discovery necessary for trial cannot be completed in that time, that plaintiff’s experts cannot adequately review the project engineering layout and design in that time, and that it would not be feasible to try this matter beginning on December 14, 2011,” Frizzell wrote in his ruling.

The Nation is against the wind farm project, arguing its construction interferes with the Osage Minerals Estate and would prevent producers from mining oil and natural gas in the area where the wind farm is proposed. The project will be built on privately owned ranch lands, but the Minerals Estate shareholders own all rights to the subsurface minerals, which is held in trust by the federal government. The Bureau of Indian Affairs has also opined it is concerned the wind farm construction may interfere with oil and natural gas mining. 

In its lawsuit, the Nation is also asking the court to find Wind Capital Group in violation of federal law, citing a Code of Federal Regulation which guarantees the Nation access to the Minerals Estate. The Nation is also seeking incurred attorney fees and court costs.  

In its request to consolidate the preliminary trial and trial on the merits, Wind Capital Group argued the company is “exposed to imminent, permanent, irreparable harm. The lawsuit jeopardizes the very existence of the wind facility not because Plaintiff’s claim has any merit, but because of the immediate, practical impact of a pending lawsuit (even a meritless one) on Project financeability (sic) and schedule.”

“If the merits of Plaintiff’s claim are not resolved via this expedited procedure, this action will significantly impair (Wind Capital Group’s) ability to qualify for the federal production tax credit as well as the financing premised on the credit,” wrote attorney Craig Fitzgerald, who is representing Wind Capital Group in the case.

In a declaration also filed Oct. 26, Robert Scheuermann, Wind Capital Group’s senior vice president of finance stated “the economics and long term financing of the Project hinge on the availability of the federal Production Tax Credit, which was designed to promote construction of alternative energy sources such as wind farms. To qualify for this credit, the Project must be in service by the end of 2012.”

The Nation has previously stated it is not against renewable energy efforts, but is opposing efforts to build the wind farm and argues that oil and natural gas mining operations could be disrupted by the wind farm turbine construction.

In its Oct. 18 complaint, the Nation argues: “The construction and placement of 94 wind turbines, met [meteorological] towers, high voltage electric underground transmission lines, power substations, storage yards, outbuildings, and roads will significantly interfere with Osage Nation’s, the dominant estate holders’, right of access.”